Monthly Archives: October 2015

WKBN reported that police arrested Gilbert Macali for sexually assaulting a woman at Camelot Arms Nursing and Rehab Center nursing home. Police charged Macali with gross sexual imposition. On Sept. 23, a nurse at Camelot told police that Macali, who worked at the facility, sexually assaulted a patient at the nursing home, according to police.

The U.S. Court of Appeals for the Third Circuit has found that post-award objections to an arbitrator were waived because the party had constructive knowledge of the arbitrator’s alleged insufficient disclosure. According to the Court, a “sore loser” is not permitted to “game the system” and conduct a background investigation on an arbitrator after an award with the sole motivation to seek vacatur.

The Court also held that a party is precluded from challenging an award where alleged malfeasance, ranging from conflicts-of-interest to non-disclosures of disciplinary proceedings, could and should have been reasonably discovered. The Third Circuit held that had due diligence been conducted after the disclosure, it would likely have discovered the true extent of the concerns about the arbitrator’s character and fitness to serve on the panel, such as a number of other complaints for the unauthorized practice of law, and that the disclosure itself was false.

The Province reported the settlement between PharMerica Corp. and federal investigators for kickbacks. PharMerica agreed to pay $9.25 million to settle allegations that it solicited and received kickbacks from a manufacturer in exchange for promoting a drug with nursing home patients, federal prosecutors announced. The settlement resolves claims that it received kickbacks from Abbott Laboratories in exchange for recommending that physicians prescribe the Abbott-manufactured drug Depakote. The federal government alleged the kickbacks were disguised as rebates, educational grants and other financial support.

In 2012, Abbott pleaded guilty and agreed to pay $1.5 billion over allegations that it promoted Depakote for patients with dementia and autism — uses not approved by the Food and Drug Administration. The drug was approved for bipolar disorder and epilepsy.

“Elderly nursing home residents suffering from dementia have little control over the medications they receive and depend on the unbiased judgment of health-care professionals for their daily care,” said Deputy Assistant Attorney General Benjamin C. Mizer, head of the U.S. Justice Department’s Civil Division. “Kickbacks to entities making drug recommendations compromise their independence and undermine their role in protecting nursing home residents from the use of unnecessary drugs.”

Gerardo Cardenas, communications manager with AARP Illinois, says the Illinois Department of Public Health receives about 19,000 complaints of abuse and neglect each year from people residing in long-term care facilities.

“It was critical to have something in place that allows nursing home residents to feel that they’re safe in their room,” says Cardenas. “That they’re being monitored and that abuses and neglect will be recorded and reported.”

AARP is working to educate residents about the law’s provisions. Cardenas says before deciding to install a camera, consent is required from the resident and his or her roommate and a sign must be posted outside the room to alert staff, residents and visitors of the camera.

He adds it is the responsibility of the patient or the family to pay for the costs of the device, and the facility is not required to provide internet service for streaming video. When the law begins at the start of 2016, the Department of Public Health has an additional 60 days to provide a consent form for residents.

The department also will publish guidelines for the cameras, but Cardenas suggests interested families go ahead and begin researching their options.

“They need to look for equipment that fits their budget but also fits the provisions,” says Cardenas. “It must be visible; it must be installed in a certain position in the room. Fortunately there are many, many options out there that fit different kinds of budgets because the costs will fall upon them. ”

The law also states that the facility cannot retaliate or discriminate against a resident with a camera, and employees are forbidden to tamper with an installed device without a resident’s permission. Cardenas says any violations are subject to a misdemeanor or felony charge depending on the circumstances.

CBS reported that the only nurse on duty when residents were given excessive doses of morphine at Holland Homes Assisted Living denies she administered the morphine. In a video deposition, Talisha Lillard denies any involvement in the death of 98-year-old Dorothy Byrd. “I do not know how she received morphine,” Lillard said. Lillard had only worked at the facility nine shifts, had an expired nurse’s license and received inadequate training.

“The morphine was in the drawer. In the deposition, she stated that she saw it and knew where it was located. She had access,” said Byrd’s daughter, Sandra Byrd-Peterson. Last February, Byrd was one of six seniors from Holland rushed to the hospital with morphine in their systems. Byrd was the only one who died from an overdose.

NPR had a great article on the inherent unfairness of forced arbitration in nursing home contracts. The article discusses the tragic case of Dean Cole who was neglected at a nursing home and died from dehydration. His wife, Virginia, had signed a stack of papers when her husband was admitted to the nursing home. One of the concealed forms was a binding agreement to go to arbitration if she ever had a claim against the facility. So instead of getting a jury trial which is a constitutional right, her claim for wrongful death was heard by three private arbitrators. They charge for their services. The arbitration bill for the arbitrators was $60,750. Virginia Cole won her claim, but after paying the arbitrators, expert witnesses and attorney’s fees, she was left with less than $20,000.

The federal government is now considering safeguards that would regulate the way nursing homes present arbitration agreements when residents are admitted. But more than 50 labor, legal, medical and consumerorganizations have told the government that’s not enough. They want these pre-dispute arbitration agreements banned entirely. Thirty-four U.S. senators and attorneys general from 15 states and the District of Columbia also have called for banning the agreements.

“No one should be forced to accept denial of justice as a price for the care their loved ones deserve,” says Henry Waxman, a former congressman from California. Arbitration agreements keep the neglect and abuse of nursing home residents secret, Waxman says, because the cases aren’t tried in open court and resolutions sometimes have gag rules. “None of the systemic health and safety problems that cause the harm will ever see the light of day,” he says.

SWNewsMedia reported the disturbing treatment of a nursing home resident by Wanda Bea Poston. She is charged with criminal neglect and disorderly conduct against an elderly Alzheimer’s patient at the Lutheran Home nursing home. Poston, allegedly hit, yelled at and aggressively washed an 86-year-old man on Jan. 30, 2015. The charges against her both are gross misdemeanors.

According to the Scott County District Court criminal complaint:

Nursing home staff reported the abuse to a Belle Plaine officer on Jan. 30, the evening the incident occurred. On Feb. 3, an officer went to the Lutheran Home and spoke with a social worker and two nursing assistants who witnessed the alleged abuse.

The two assistants said they were working with the elderly man the night of Jan. 30 and observed Poston in “several instances of aggressive and abusive language and behavior” toward the man. The behavior reportedly included washing the man’s genital area roughly “using a great amount of force,” yelling at him and hitting the man’s legs in the presence of the assistants. Poston also allegedly threatened to spray the man in the face with body spray deodorant and repeatedly yelled at the man.

Arkansas Matters reported the courageous fight waged by Lisa Sanders who says her mother was over medicated, and not taken care of properly. According to Sanders, AHC overmedicated her mom and put her in dirty rooms. Some of the rooms, she said, had spiders all over the floor, and bugs crawling in her bed. She’s also accusing a nursing home of abuse towards patients. Sanders says they are getting away with murder because the Arkansas Health Center (AHC) is state funded. Her mother was sent to the hospital 37 times and now Lisa is taking legal action.

“They’re actually murdering people,” says Sanders. “It’s very disheartening to know a state facility is not doing what they are supposed to do,” she adds.

The state run facility is evaluated by the Department of Human Services (DHS), Sanders says DHS covers deficiencies to keep the nursing home’s rating high. “In the long term I hope nursing homes are held accountable privately or state. It doesn’t matter. They need to be held accountable,” says Sanders.

Consumer Affairs had an article about the Attorney Generals fighting to protect the integrity of the American Civil Justice system. The attorneys general from 16 states have sent a petition to the Centers for Medicare and Medicaid Services (CMS), strongly opposing pre-dispute arbitration clauses in long-term care facility contracts. Connecticut and Maryland joined California, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia in submitting comments to CMS.

When you sign admission paperwork to enter a long-term care facility, the document often contains what is called a pre-dispute arbitration clause. It means that right up front, you agree to let a third party arbitrator resolve any dispute that might arise, and giving up your constitutional right to a jury trial.

The state officials say consumer protection provisions of these contracts should be strengthened, not weakened. They contend that an individual entering a nursing home or other long-term care facility, or family members acting on their behalf, are often making a healthcare choice under stressful circumstances, making it difficult to be rational or informed when deciding the resolution of future disputes.

“While arbitration can be used to resolve such disputes, the decision to do so should not be taken out of the hands of consumers prior to a conflict arising,” said Connecticut Attorney General George Jepsen. “The worst time for a vulnerable person or his or her family to decide the means to resolve potential future disputes is at the time of admission to a nursing home. It is simply unfair to ask someone in that difficult and delicate circumstance to enter a binding arbitration contract.”

“Arbitration can be a preferred method of resolving disputes, but that decision should not be taken out of the hands of consumers long before a conflict is ever contemplated,” said Maryland Attorney General Brian Frosh. “The worst time to provide a waiver of patient rights like this is when you or a loved one are going through the difficult process of entering a long-term care facility.”

In their written comments, the attorneys general argued that pre-dispute binding arbitration agreements in general can be unfair to consumers, jeopardizing one of the fundamental rights of Americans – the right to be heard and seek judicial redress for our claims.

“This is especially true when consumers are making the difficult decisions regarding the long-term care of loved ones,” the attorneys general wrote. “These contractual provisions may be neither voluntary nor readily understandable for most consumers.”

In the case of nursing homes, the attorneys general say their position is consistent with that of the American Arbitration Association, which determined in 2003 that it would not administer healthcare arbitration between patients and service providers that related to medical services unless all parties agreed to arbitration after the dispute occurred.

The Buffalo News reported the common problem of resident to resident abuse in nursing homes. A recent study found that one of every five residents experiences some form of aggression at the hands of other residents every month. Every year, several homicides result from attacks by nursing home residents.

assaults are part of a pattern of negative resident-on-resident encounters that has been documented and reported on by a team of researchers from the Weill Cornell Medical College in New York City. The researchers surveyed about 2,000 people living in 10 skilled nursing facilities in New York State to track inappropriate, disruptive and hostile behavior between residents – and found it to be surprisingly common.

The offenses ranged from the merely irritating to the physically threatening. Researchers discovered:

• Nearly 6 percent of residents were involved in hitting, kicking or biting

• 16 percent of the cases were in the form of screaming or cursing at people

• A small number – less than 2 percent – exposed their genitals or made unwanted sexual advances

• And there were various instances of scratching, spitting and throwing things.

• More than 10 percent of the residents experienced “unwelcome entry into another resident’s room or going through another resident’s possessions” – a seemingly minor offense, but the type of behavior that can trigger an angry physical response from the person who is intruded upon.

By taking a closer look at how nursing home residents mistreat one another, elder care professionals can work on better ways to prevent it. Defining the risk factors that can lead to more resident-on-resident mistreatment is easier. Places that reported more incidents share similar characteristics:

• Conditions were more crowded and there was less private space. This forced more unwanted interactions.

• Understaffing and low staff-to-resident ratios were common.

• Ongoing conflicts between residents were more likely to go unresolved, and being around ongoing hostility stressed out other residents;

• Staff members became so desensitized they begin to view the conflicts as normal behavior.

Research has shown that increasing worthwhile social interaction and physical activity helped adults with memory problems get more sleep, and that in turn reduced anxiety and they became less aggressive.

“Without these policy and practice changes,” she said, “there will be a growing incidence of aggression as staff and residents deal with the stressors of institutional life.”